from the let's-try-this-again... dept

Back in November, we wrote about a proposal making the rounds in the EU for an official "right to be forgotten" law, which would allow people to demand that any website delete all info about a person at their request. As we've noted, some European countries already have something like this, such as in Germany, where a convicted murderer tried to force Wikipedia to remove his name in a discussion about the murder. France has been arguing for such a law for a while as well.

Over at The Atlantic, there's a story with the expected storyline about how Europe loves privacy, while the US loves free speech, and this whole "right to be forgotten" issue is where those two cultures clash. While there is some truth to the stereotypical claims about the US believing free speech trumps all and Europe valuing privacy much more, I still think this story line is not accurate for two important reasons.

First, I still don't believe the "right to be forgotten" is truly a privacy issue at all. A privacy issue is about protecting private information. The right to be forgotten is the opposite of that. It's asking websites to delete public information, including factual news information about a person. That's not about privacy. That's about pretending public information is really private.

And that brings up the second point, which is that the concept of a "right to be forgotten" isn't just silly because of the free speech restriction, but because it's impossible. You might be able to force some information off of some websites, but it will simply be impossible to erase that information completely -- especially on a global internet, where large segments of that internet will not exist in countries that abide by any "right to be forgotten." But even beyond that, once information is public and in people's brains, it's impossible to force them to forget it and equally impossible to realistically tell them they cannot ever speak about it again. From a sheer logistical angle, the whole idea of a "right to be forgotten" is so laughable that it's a waste to even seriously consider implementing such a thing.

Of course, that's probably why some politicians will still try to do exactly that.

Reader Comments

On the other hand

"But even beyond that, once information is public and in people's brains, it's impossible to force them to forget it and equally impossible to realistically tell them they cannot ever speak about it again. From a sheer logistical angle, the whole idea of a "right to be forgotten" is so laughable that it's a waste to even seriously consider implementing such a thing."

Since laws are polite fictions which are allegedly agreed upon and followed by the populace, what harm is there in introducing another fiction?

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That's a good lead-in for what I wanted to say. Suppose we erased all references to the Quayle gaffe at the spelling bee.

Most of us will still remember that Quayle misspelled potato but many will forget that the card he was looking at also contained the misspelling.

How many people who haven't read about Charles Manson know that he wasn't even present when Sharon Tate was murdered? (not that that exonerates him or anything).

If Manson were to have his "right to be forgotten" almost everyone would still remember him but we'd also probably think he actually cut out her heart and ate it as well.

So the right to be forgotten could seriously backfire.

I have no concrete evidence but I suspect Germany's laws against Nazi propaganda have probably fueled some neo-Nazis who see themselves as oppressed because Mein Kampf is banned.

Even the Central Council of Jews in Germany has changed its zero-tolerance stance toward a German release of Mein Kampf. "An aggressive and enlightened way of dealing with the book would undoubtedly divest it of much of the myth that so unjustly surrounds it," says Stephan Kramer, the organization's general secretary. The "lack of comprehensive knowledge about the [National Socialist] regime" doesn't allow German youths to put the book "into context." A well-annotated edition is both "sensible and important."
Read more: http://www.time.com/time/arts/article/0,8599,1831786,00.html#ixzz1D1C3dHwL

I hope you are not claiming that nothing should ever be taken down from websites, or that everything ever posted online is of archival value. Sometimes taking down a nasty blog post, replacing names with initials or removing one picture is all that takes to prevent massive reputation problems.

To me, this reflects the absurdity of section 230 in the US: not holding intermediaries liable for third party content is necessary, but the law has been interpreted by courts to say that no one - not even a court order - can force intermediaries to take down content.

Re: Re:

That's not at all true. For one thing, there is the DMCA takedown process for infringing content. It's also possible to have content removed once it has been demonstrated to be defamatory or libelous.

Sadly, most lawsuits attempting to prove the libelous nature of internet posts are lost because of the anonymous factor and websites being unwilling to part with user information. Without someone to sue, it is harder to move forward in many jurisdictions. Section 230 isn't just a shield for the websites, but has also become a great big wall that anonymous people can lob written bombs from behind with near impunity.

You can get default judgement against "does" but it is often expensive and without any chance of remedy beyond the takedown, long after the damage is done.

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A court order can get the information. It's full blown idiocy to think that a website doesn't keep that information. If the website refuses to give that information, then they are in violation of a court order.

Marcus, I wish that was the case. See Zeran vs. AOL for the first case where that was decided. The DMCA applies to copyright issues ONLY, and it is completely out of the scope of what I meant.

The irony of this is huge: if you own the copyright to a homemade porn movie, you can use the DMCA to force sites to take it down. If you happen to be the sorry lady depicted there with no consent whatsoever, you cannot use the DMCA and CDA 230 prevents you from getting an order from a court forcing the site to take it down.

Right idea, wrong law.

While that is certainly tragic, we need to simply stop treating all information as if it were meant to be published. There should be a bright red line between your "private papers" in whatever form they may take and works that are published and created with that intent.

The focus on Media Moguls has completely distorted the public discussion about information in general.

Nothing that is labeled "copyright act" should hold jurisdiction over "personal papers".

That's the result of parents telling children that computers are bad, that Internet is evil and that they should go play outside instead of geeking all day long.
Then, when finally those children reached an age where parents aren't able to protect them, they posted every bits of their life on skyblogs.
Then they grew up. Friends changed. Standards of coolness changed. And they regretted having shown everything to the world. I was young.
Now Facebook is the norm. They have learned their lesson and control more carefully who can access their informations. They are very careful about it, showing to the world little of them and much more of others. What they didn't thought of, is that they can't control what others are showing of them. And it might have consequences.

This Right to be Forgotten thing is the result of people who can't assume the consequences of their actions because, since the Internet is everywhere, they cannot escape anywhere.

Governments should promote ethics and basic Internet knowledge as real and compulsory scholar courses for children instead of those current “Your teacher will tell you how evil Internet and Facebook are ” between the History and MS Word courses.

And since I don't want my last Saturday party impacting on my next job interview, they should also promote laws against employers using Facebook photos as ground of not employing me, instead of promoting laws against Internet.

It's more a case of Stigma and Expungement

I think there are two similar but distinct cases involved here.

The internet never forgets, or so some say. Things that previously would never have been recorded, now are. Sometimes by friends or ourselves (the ill-conceived Face book picture of you after the party), other times by the near ubiquitous surveillance we live through daily. Or alternatively, if you wanted to know something you had to seek it out, visit the courthouse in person. Things that were inconvenient to access were in practice private information. No one was going to transcribe every single court infraction by hand. If you weren't important then most people wouldn't take the time to look you up. So in practice peoples lives were a lot more private than they are now.

This goes hand in hand with the legal concept of expungement. That if you served your time, or were later found innocent, then your record would be expunged. It would be like it never happened. That's easy to do when the only records concerning an incident reside in musty courthouse documents. Expungement is like annulment for your legal past. A divorce means that your were married but now you're not, an annulment means the marriage never happened. An expungement means that your conviction never happened, otherwise you are just another ex-con.

Since information is soo easy to come by companies make it their business to vacuum up everything on everybody cause it cheap and you never know who you might be able to sell it to someday. Now everything that you do in public, every somewhat public record that some one has on you, every recorded transaction is liable to haunt you for the rest of your life and beyond.

I think that the only way we can deal with this is to:

First, prohibit people from amassing so much information on everyone. What information you do have to compile on someone, has to be limited to what is _actually_needed_ to accomplish the transaction at hand. Your utility company doesn't need your SS#, your religious preference or the number of people living in your home to sell you electricity. If it isn't collected, then it doesn't exist. If it doesn't exist, then you don't have to order it erased.

Second, organizations that amass this information about you should have a legal requirement to ensure that it's accurate, to safeguard it from others, and to delete it when requested. If there's only one copy of that information, it's much easier to get rid of it, especially it it isn't needed anymore.

Third, there has to be real penalties for failing points one and two. Monetary penalties that are large enough to be more than the cost of doing business. Shutting down companies and yes jail time for egregious violators.

Finally there has to be a change in the stigma in having done certain things. Some of it will have to be legislated (such as the restrictions against people with criminal records, since eventually we will _all_ have criminal records) and some of it will have to societal. At one time being an unwed mother carried a real and debilitating stigma, now it isn't that bad.

In some ways I appreciate the European mindset. We could do worse than to nip the rampant amassing and trading in our otherwise private information.

Re: It's more a case of Stigma and Expungement

Hi, long time reader, first time poster! Now I'm no big city lawyer but it seems to me like we got here is a classical case of TOBAL, "There Oughtta Be a Law" syndrome, and this is the typical application of it; simple, short-sighted, with far-reaching unintended consequences.

First, prohibit people from amassing so much information on everyone. What information you do have to compile on someone, has to be limited to what is _actually_needed_ to accomplish the transaction at hand. Your utility company doesn't need your SS#, your religious preference or the number of people living in your home to sell you electricity. If it isn't collected, then it doesn't exist. If it doesn't exist, then you don't have to order it erased.

Who gets to decide what is "_actually_needed_"? You, the company doing business? It's funny you mention utility companies, most don't actually need your social security number, they just use it to do a credit check to waive the security deposit, don't want to give it? Don't, pay the deposit and move on. In fact most information people give out they voluntary do so.

Second, organizations that amass this information about you should have a legal requirement to ensure that it's accurate, to safeguard it from others, and to delete it when requested. If there's only one copy of that information, it's much easier to get rid of it, especially it it isn't needed anymore.

First most industries (banking, utility) already have the requirement of safeguarding it and yet it sometimes still gets out, so who decides what safeguarding means? Second, requiring that it be accurate? Does that mean if you register a 'fake' account with the NYTimes to read an article they have to ensure it's accurate? To what lengths must they go? Third why should you get to dictate to companies that they delete information that you previously gave them, and once again who gets to decide it isn't needed anymore.

Third, there has to be real penalties for failing points one and two. Monetary penalties that are large enough to be more than the cost of doing business. Shutting down companies and yes jail time for egregious violators.

Most companies already have a very real penalty for failing in both of your points, especially number two. That is their reputation, which can really effect their bottomline. Just look at the scandal regarding Gawker's security breach.

Finally there has to be a change in the stigma in having done certain things. Some of it will have to be legislated (such as the restrictions against people with criminal records, since eventually we will _all_ have criminal records) and some of it will have to societal. At one time being an unwed mother carried a real and debilitating stigma, now it isn't that bad.

So now you want to tell private companies they must be forced to hire criminals? Shouldn't that decision be left to them?
Have you ever seen that old Sprint commercial for their push-to-talk service featuring a bunch of firemen that were acting as legislators?

"What should we do with the budget?" to which the firefighters reply in unison "Balance it."

The British Reformed Rapist Society wants the world to forget their past. The Italian League of Child Prostitute Trafficking has a right for their prior actions to be forgotten by the world. And the German Gangbangers Guild demands justice for the crime of remembrance that was perpetrated on them. Who will stand for them if not the people of the EU.

While we are at it, the Catholics demand the world's forgetfulness of the inquisition, the crusades, and their suppression of science. All the European governments demand we all forget about slavery and unjust wars.

If we begin editing history, where do we draw the line? Who gets to decide what must remain, and what must be edited. I'm all for privacy, and if something is private, keep it private. But if you've done something public, or made it public, then you have to face the consequences. Tough luck.

Well, there's really only one thing to do. Let the law go through, and watch as the first poor saps that try to hide their actions have the spotlight turned on them full-blast.
Europe must learn a bitter lesson: The internet does not tolerate censorship.

privacy can still be a factor in "public"

It's a flawed analysis to think that privacy issues can be boiled down to a black and white statement like "A privacy issue is about protecting private information. The right to be forgotten is the opposite of that. It's asking websites to delete public information, including factual news information about a person.", though it is at least a flawed analysis that the courts tend to share with you.

This dichotomy is yet another area where technology is being disruptive. The idea that anything you do in public is public information made sense before a world of ubiquitous cheap recording devices. But now it isn't so clear.

To illustrate my point, consider the extreme. Technology is constantly making surveillance easier and cheaper. What if technology eventually made surveillance so cheap that it really was ubiquitous? What if a technology were invented that could record every single thing that happened in a "public" space, down to the last subatomic string oscillations? Would that be an invasion of privacy? I contend that, despite being entirely about things "in public", the majority of people would answer yes, that would be an invasion of privacy.

Clearly, it makes sense for there to be an expectation of privacy for some information, but not for other information. I mean only to point out that it isn't as simple as saying "in public = no expectation of privacy; in private = expectation of privacy".

Re: privacy can still be a factor in "public"

I don't think Mike had advocated that what happens in "public" is 100% public information.

If such a system was possible to record every single action that happened in a "public" space, we still shouldn't be arguing about what websites do with that information when it's out there. We should be arguing about whether such a system should actually be installed, who should be allowed to do so, and under what circumstances they're allowed to use it. However, once a news organization or some other media outlet gets hold of the information and it does become public, then it's out there.

Re: Credit Bureaus

This.

I would support a measure to at least require timely response to corrections to Credit Bureaus long before i would ever be in favor of a "right to forget" anything on the internet.

Not to say that strong consumer protections are not important. I am all in favor of companies being required to handle their data in safe ways and follow the claims made in their user agreements. But in comparison, a rogue credit bureau can cause infinitely more harm.

What about my rights?

Forget about the right to be forgotten, what about my right to know the truth? The more facts get obliterated, the harder it gets to realize the truth of things. Thanks to the internet's memory, maybe we can be more aware of our foibles and failing because we can't brush them off with dismissals or romanticize them.

Memory is a useful tool in learning lessons. The more we remember, the more we might stand to improve ourselves. And if we can't improve ourselves, maybe we can just be more at peace with our nature.

There isn't a 'right to be forgotten'. There is a right to not have untrue things said about you (something I have had to get on numerous websites about) on the internet and elsewhere.

It's about time to realize that many times on the internet, statements are taken out of context or people are given 'partial statements' from someone.... that needs to stop, it denigrates 'free speech' by making it 'manipulated speech'.

I wonder how such a law would affect history books. Should that law have been passed while Hitler was alive he would undoubtedly have used it to ensure there was no reference to him and the holocaust. Perhaps this legislation is really about politicians begin able to abuse power while making it harder for people to find information associated with such abuses.

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All the politicians need to do is pass another law to increase the the "Right To Be Forgotten" length to "Death of the Person + 70 years" (worked out fine for the absurdly long copyright laws in the U.S.) so Hitler and his followers will still have until 30 April 2015, to get his record removed from the history books. If they don't win their case before that date, they can always pass another law to extended it even further.

Yup

As someone who works with confidential health information, you are correct about the fact this isn't private. Private info is info that only you know. Confidential info is info that is no longer private but is still held only by a trusted few and not discussed in public. Obviously this was a public issue, and there's no way to pretend it didn't happen.

If expungement is the issue, then the court should have some sort of record HR has to verify when running a background check.

Hmmm I wonder...

From a sheer logistical angle, the whole idea of a "right to be forgotten" is so laughable that it's a waste to even seriously consider implementing such a thing.

Think so? On the face of it having an object where detailed knowledge of how to make it is completely public then insisting that only one person is allowed to make it seems pretty much equivalent and that's enshrined in laws in every western country. Not to mention expecting countries that don't believe the same thing to play along.

I agree it's a dumb idea but since when has that stopped a law being enacted?

Claim Americans 'Fetishize' Free Speech

Actually I think sometimes you (the US) do, or perhaps it would be more accurate to say it almost becomes an article of religious faith, but that's probably better than the alternatives.

Doublethink

I understand that people want their privacy protected and they want to be protected from other people saying things that are not true, but there are already ways of handling such things. The ability to allow a person to demand that a website delete anything that relates to them is a scary concept. Think about it from a political perpective, I believe that politicians are the ones most interested in seeing such a law pass. They would be able to say demand that wikipedia take down any piece of information about them that they don't like wether true or not. If something like this existed it would be easy for politicians or movie stars, anyone that has a public life and people would be interested in learning about, it would allow them to control what information does or does not get published about them, the things they did or the laws they supported which were unpopular. Things like that.

If we are going to look at it from a regular person's perspective then as said before if you are someone who does not understand how the internet works and you go posting all your personal pictures on your facebook or myspace and everyone can see them, and they show you doing things that are not exactly flattering, the unfortunately that's on you. You choose to use something without understanding how it works and now you must face the consequences. Places like facebook and myspace have ways preventing everyone and their mother from seeing what's on your page, they may not be perfect but if you did not want anyone to see it, you should not have posted it on something as volatile as the internet.

This isn't really about privacy. This is about controlling information. This is about someone being allowed to demand something they dont like wether true or not to be removed. It is entirely impossible to remove every trace of yourself from the internet, but with a law like this and some diligence you could make much more difficult for people to learn about you. The people who already read the information will remember it, but people who have not seen it yet, unless they can find someone who knows this information will have a harder time learning it. As I stated before this not about privacy no matter what they say, this is a way of giving people the power information from the internet, or at the very least attempt to, whether the information is accurate or not.